[Federal Register: May 23, 2003 (Volume 68, Number 100)]
[Notices]
[Page 28254-28255]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23my03-123]
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UNITED STATES INTERNATIONAL TRADE COMMISSION
[Inv. No. 337-TA-406, Consolidated Enforcement and Advisory Opinion
Proceedings]
In the Matter of Certain Lens-Fitted Film Packages; Notice of
Commission Decision Not To Review the Administrative Law Judge's
Supplemental Initial Determination; Decision To Issue Cease and Desist
Orders and Civil Penalties; Termination of Consolidated Enforcement and
Advisory Proceedings
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
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SUMMARY: Notice is hereby given that the U.S. International Trade
Commission has determined not to review a supplemental initial advisory
opinion (IAO) and enforcement initial determination (EID) issued by the
presiding administrative law judge (ALJ) on October 24, 2002, in the
above-captioned proceedings under section 337 of the Tariff Act, as
amended, 19 U.S.C. 1337. Notice is also given of the Commission's
decision to issue cease and desist orders to four respondents in the
proceedings who were found to have violated the Commission's general
exclusion order which was issued in the original investigation, and the
Commission's decision to levy civil penalties against three respondents
who were found to have violated cease and desist orders that were
issued in the original investigation.
FOR FURTHER INFORMATION CONTACT: Jean Jackson, Esq., telephone 202-205-
3104, Office of the General Counsel, U.S. International Trade
Commission, 500 E Street, SW., Washington, DC 20436. Copies of all
nonconfidential documents filed in connection with this investigation
are or will be available for inspection during official business hours
(8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S.
International Trade Commission, 500 E Street SW., Washington, DC 20436,
telephone 202-205-2000. General information concerning the Commission
may also be obtained by accessing its Internet server (http://www.usitc.gov
). The public record for this investigation may be viewed
on the Commission's electronic docket (EDIS-ON-LINE) at http://edis.usitc.gov.
Hearing-impaired persons are advised that information
on the matter can be obtained by contacting the Commission's TDD
terminal on 202-205-1810.
[[Page 28255]]
SUPPLEMENTARY INFORMATION: The Commission's original investigation in
this matter was terminated on June 2, 1999, with a finding of violation
of section 337 by 26 respondents by reason of importation or sales
after importation of certain lens-fitted film packages (LFFPs) (i.e.,
disposable cameras) that were found to infringe one or more claims of
15 patents held by complainant Fuji Photo Film Co. (Fuji). 64 FR 30541
(June 8, 1999). The Commission issued a general exclusion order,
prohibiting the importation of LFFPs that infringe any of the claims at
issue, and issued cease and desist orders to twenty domestic
respondents. Id. Three respondents appealed the part of the
Commission's determination that concerned refurbished cameras to the
U.S. Court of Appeals for the Federal Circuit. No party appealed the
Commission's determinations concerning newly-manufactured cameras.
On June 27, 2001, Fuji filed a ``Complaint for Enforcement
Proceedings Under Rule 210.75, Petition for Modification Under Rule
210.76 and/or Request for Advisory Opinion Under Rule 210.79.'' Fuji's
enforcement complaint asserted 22 claims contained in nine utility
patents and named twenty entities as respondents. Fuji later withdrew
its complaint as to three of the respondents. Fuji's complaint concerns
only newly-manufactured cameras that were not the subject of the appeal
to the Federal Circuit. On July 31, 2001, the Commission instituted
advisory opinion and enforcement proceedings and referred them to the
ALJ for issuance of a separate initial advisory opinion (IAO) and
enforcement initial determination (EID). 63 FR 40721 (August 3, 2001).
On May 2, 2002, the ALJ issued his IAO and EID in which he made 59
separate infringement determinations involving seven patents, 13
respondents, and 28 different types of accused LFFP. He also
recommended the penalties to be assessed against the respondents who
were found to have violated the general exclusion order (GEO) or cease
and desist orders that were issued in the original investigation. Eight
petitions for review of the IAO and/or EID violation issues were filed
on May 16, 2002. Responses were filed on May 24, 2002. On June 7, 2002,
Fuji filed a supplemental brief concerning the application of
intervening Supreme Court precedent, Festo Corp. v. Shoketsu Kinzoku
Kogyo Kabushiki Co., Ltd., 122 S.Ct. 1831 (May 28, 2002), to the issue
of infringement under the doctrine of equivalents. The Commission
determined not to review the remainder of the IAO and EID. The
Commission also requested comments on the ALJ's penalty
recommendations. Comments were filed by Fuji, the Commission
investigative attorney (IA), and respondents Argus Industries, Inc. and
Photo Works, Inc. Response comments were filed by Fuji, the IA, Argus,
PhotoWorks, Achiever Industries, Ltd., Highway Holdings, Ltd., The
Message Group, Inc., and VastFame Camera Ltd. Ad-Tek Specialities, Inc.
filed an affidavit.
On October 24, 2002, the ALJ issued a supplemental IAO and EID in
which he determined that the application of the Festo decision did not
change his earlier determination that VastFame camera models VN99 and
VN991 did not infringe claim 9 of U.S. Patent No. 4,972,649 (the '649
patent) under the doctrine of equivalents. Fuji filed a petition for
review of the supplemental IAO and EID. VastFame opposed Fuji's
petition. The Commission, having examined the petition for review, and
the response thereto determined not to review the findings of the
supplemental IAO and EID on the issue of infringement of claim 9 of the
'649 patent in view of the Supreme Court decision, Festo Corp. v.
Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd., 122 S.Ct. 183.
The Commission also received written submissions from the parties
that addressed the EID's recommendations on civil penalties, the effect
of the cease and desist orders recommended in the EID on the public
interest, and the amount of bond that should be imposed during the 60-
day Presidential review period concerning the cease and desist orders.
Having reviewed the record in this investigation, including the
written submissions of the parties, the Commission determined: (1) To
issue cease and desist orders to defaulted respondents Americam, Inc.;
Camera Custom Design a/k/a Title the Moment Inc.; CS Industries a/k/a
PLF Inc.; and Penmax, Inc. to prevent them from engaging in unfair acts
in the importation and sale of lens-fitted film packages from
inventory; (2) that the public interest factors enumerated in
subsection (f) of section 337 do not preclude the issuance of the
aforementioned cease and desist orders, and that the bond during the
Presidential review period shall be in the amount of 100 percent of the
entered value of the articles in question; (3) to levy civil penalties
against Argus Industries, Inc. in the amount of $480,000, Ad-Tek
Specialities, Inc., in the amount of $200,000, and PhotoWorks, Inc. in
the amount of $1.6 million for violations of cease and desist orders
that the Commission issued at the completion of the Lens-Fitted Film
Packages investigation.
This action is taken under the authority of section 337 of the
Tariff Act of 1930, as amended (19 U.S.C. 1337), and sections 210.75
and 210.79 of the Commission's Rules of Practice and Procedure (19 CFR
210.75 and 210.79).
Issued: May 19, 2003
By order of the Commission.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. 03-12937 Filed 5-22-03; 8:45 am]
BILLING CODE 7020-02-P